Conventions, Changes, and Contradictions in Land Governance in Africa: The Story of

Land Grabbing in North Sudan and Ghana

Author(s): Yasin Abdalla Eltayeb ElHadary and Franklin Obeng-Odoom
Source: Africa Today , Vol. 59, No. 2 (Winter 2012), pp. 59-78
Published by: Indiana University Press
Stable URL: https://www.jstor.org/stable/10.2979/africatoday.59.2.59

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Analyses of land grabbing
in Africa tend to cast [trans-
national corporations] as
villains. Some TNCs are,
but the story is hydra-
headed and reflects how
state and community forces
support the tendency of
capital to accumulate and
weaker social classes to
dissipate.

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Conventions, Changes, and
Contradictions in Land Governance in
Africa: The Story of Land Grabbing in
North Sudan and Ghana
Yasin Abdalla Eltayeb ElHadary and
Franklin Obeng-Odoom

Land-tenure systems in Africa are undergoing directed trans-

formation widely believed to promote secure tenure, increase
access to credit, and reduce poverty levels. Critics claim
that the process is mainly designed to benefit transnational
corporations that grab land from local people and convert it
from farmland to investment land. Using North Sudan and
Ghana as case-study areas and drawing on multiple sources
of evidence, including official policy documents, land acts,
and existing court cases, this paper examines the nature of
land tenurial systems, explores their changing character, and
identifies the tensions and contradictions within the systems
and the processes of change. It finds little support for the offi-
cial rhetoric that the transformation in land-tenure systems
leads to secure tenure but mixed results for the claim that the
process creates avenues for obtaining credit. Furthermore, at
least in North Sudan and Ghana, the state grabs land and
sells it to amass wealth and power under the guise of com-
pulsorily acquiring land in the public interest and for title
registration.

The ownership and use of land, especially among traditional producers in

most developing countries, is not just a source of livelihood, but a symbol
of identity, dignity, solidarity, and peace (Egemi 2006a,2006b; ElHadary
2010; Komey 2009). So the World Bank devoted its reports Land Policies for
Growth and Poverty Reduction (Deininger 2003) and A Better Investment
Climate for Everyone (World Bank 2005) to the interrelated issues of access
to secure property rights, exchange and distribution of land in markets, and
the role of governments in land management.

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 Since the 2008 surge in food prices, foreign interest in agricultural land
has increased and, in less than a year, investors have expressed interest in and
acquired some 56 million hectares of land, of which 29 million were in sub-
Saharan Africa in 2010 (World Bank 2010). The ownership of land facilitates
access to credit, gives the poor more voice in the political arena, contributes
to higher investments in children’s education, and thereby arrests the inter-
generational transmission of poverty (World Bank 2005), yet landownership
africa today 59(2)

in many developing countries is highly unequal, substantially more so than

income or consumption (Payne 2000), making it difficult for countries to
attain the Millennium Development Goals.
Given this background, the worldwide attention that land grabbing has
attained is justified; however, most of the commentaries on the subject are
in the form of press coverage (Alden Wily 2011a:735). More careful research
and reflections abound too, but a large number take the form of general,
60

noncountry-specific, or country-specific, but noncomparative analysis. For

instance, most of the contributions (Chu 2011:35–39; Cotula and Vermeulen
Conventions, Changes, and Contr adic tions in L and Governance in Africa

2011:40–48; Zoomers 2011:12–20; cf. Kadiri and Oyalowo 2011:64–69) to the

special issue of Development, on “global land grabs” (Land Research Action
Network 2011), center on giving the general picture. Related debates about
land, such as the claim that formalization leads to more secure tenure and
more efficient land management (De Soto 2000, 2004) are ignored (Deininger
et al. 2011). In turn, analyses of land grabbing in Africa tend to cast trans-
national corporations (TNCs) as villains. Some TNCs are, but the story
is hydra-headed and reflects how state and community forces support the
tendency of capital to accumulate and weaker social classes to dissipate.
Breadth in discussing land grabbing is important, but so is depth. Both
are necessary to understand the land question, especially in Africa, which
is often spoken of as though it were one country. In the euphoria about land
grabbing, it is easy to forget about concrete cases, more particularly the
national and local institutions of land tenure that serve as the framework
for land grabbing. Such specificities are needed for more credible generaliza-
tions (Pickvance 2001:16). Thus, we here zoom in on two case studies, North
Sudan1 and Ghana. This choice is informed not only by our own research
interests, but also by earlier studies (e.g., Alden Wily 2011a, 2011b). While
existing studies establish that the two countries are different in their expe-
riences of land grabbing, they do not explore the detailed differences and
similarities between them because of the large number of countries that
they consider.
Based on a careful, confirmable, and critical metaanalysis of the exist-
ing work on the land question in both countries, and analysis of various
legal texts, the present paper tries to achieve three aims. One, it explores
the similarities and differences in the nature of land tenure in North Sudan
and Ghana and discusses their experiences with the recent transformation
of tenurial arrangements. Two, it ascertains the extent to which the trans-
formations have attained their stated aims, and, three, it charts the different
dimensions of land grabbing as a way to return to the main theme. This

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trilogy—of exploring tenurial systems, establishing their changing nature,
and analyzing varieties of land grabbing—deepens the knowledge of the
state of play on large-scale acquisition of land in Africa, triangulates it, and
challenges narratives that lump all the countries in Africa together without
considering their diverse experiences.

africa today 59(2)

The Nature of Land Tenure and Recent
Transformations in North Sudan and Ghana

Customary land tenure is the dominant system of land use and ownership
in both North Sudan and Ghana. Almost 80 percent of the land in both
countries is held customarily. The rest is statutorily owned (Babiker 2008;
Kasanga 2003). However, there are significant differences between the two

61
systems of customary land tenure. In North Sudan, formal, statutorily owned
land is based on civil laws and institutions and effectively precludes land

Yasin Abdall a Eltayeb ElHadary and Fr anklin Obeng- Odoom

owned by most of the Sudanese rural communities (Komey 2010; Alden Wily
2011a). Such land can be found in only a few areas, such as some parts of the
central and the northern regions, particularly in urban areas and along the
Nile River (Runger 1987).
The customary, “informal” land, in contrast, is based on tribal systems
and regulated by customary laws and institutions, known locally as Elidara
Elahlia, which does not get sufficient legal recognition. Indeed, as far back
as 1970, all customary land was declared “government land” by virtue
of the enactment of the Unregistered Land Act. The position was further
entrenched by legislation passed in 1984, which remains in force. In turn, the
government tries to lay claim to unfarmed land and parcels used for grazing,
and wood and gum Arabic collection (Alden Wily 2011a, 2011b; ElHadary
2010; Komey 2009, 2010).
The customary land-tenure system is known locally as dar, silif, or
hakura. The basic principles governing its use include access based mainly
on having a historic right to land, obtained by fighting with neighbors or, in
few cases, granted as a gift from chiefs (ElHadary 2010). The village leader,
known locally as a nazir (omda, sheikh), is considered the trustee of the
land, while the community is the actual owner of the land. Nevertheless,
nazirs, usually appointed by the colonial and postcolonial states, wield
considerable power, including the authority to collect tithes, maintain
order, settle disputes, and distribute land resources to members within their
respective villages (Alden Wily 2011a). They have the power to make new
customary laws pertaining to land management and use. For these reasons
and also because the nazir or sheikh and omda are paid by the central
government, in practice, nazirs behave as though they were owners, rather
than trustees (Alden Wily 2011a). Within the tribal homeland, a collective
security of the community is constituted with individual use and inheri-
tance rights without alienating the land from the collective ownership of
the community (Komey 2009). This implies that each member of the tribe

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 would maintain primary rights of access to use land for farming and herding
within the tribal territory.
The system of customary right has undergone radical changes that
threaten the livelihood of the rural communities. The changes date back to
the colonial era (1898–1956), during which, as with the rest of Africa, the
colonialists paid particular attention to the system of land tenure as a source
to exploit natural resources for their own benefit (Babiker 2008). The Title to
africa today 59(2)

Land Ordinance of 1899 was issued on the eve of colonization, and, after two
decades, the Land Settlement and Registration Ordinance Act of 1925 came
into force. Such laws set the precedents that paved the way to the current
state-led land grabs. According to the Land Settlement and Registration Ordi-
nance Act of 1925, all waste, forest, and unoccupied land is deemed to be the
property of the state until the contrary is proved (Shazali and Ahmed 1999).
Through these acts, the state sought to capture land in the whole country;
62

however, in practice, only parcels of land in the northern and central part
have been registered. The Land Acquisition Ordinance Act of 1930 makes
Conventions, Changes, and Contr adic tions in L and Governance in Africa

it possible for the Government of North Sudan to acquire any land (village
or tribal) on the basis of using the acquired land in the public interest. It is
telling that these acts do not recognize customary rights or the dar system,
for which reason the state pays no compensation for acquiring them.2 We
shall return to this point later.
After Sudan gained independence in 1956, the national government
inherited the legacy of the colonialists and followed their line in neglect-
ing the right of rural communities. Successive governments facilitated the
promulgation of land acts to facilitate land grabbing. One of these was the
Unregistered Lands Act of 1970, which decreed that land throughout the
country, occupied or unoccupied, which had not been registered before the
commencement of the Act should be registered as government property.
Further, it granted the government the power to dispose of lands as it saw
fit. This implies that all lots of land in North Sudan except parcels ear-
lier registered in the northern and central parts became government land.
Moreover, as stated by Egemi (2006a, 2006b), the Act of 1970 entitled the
government to use force in safeguarding “its land,” and this has further been
strengthened by the 1991–1993 amendment of the 1984 Civil Transactions
Act, which states that no court of law is competent to receive a complaint
that goes against the interest of the state. This act states clearly that all land,
including unoccupied parcels, if not registered based on the 1925 Act, must
be regarded as government land. Customary owners were unable to register
their lands under the provisions of 1925 act because of the overly compli-
cated and lengthy land-registration procedures, lack of adequate information
on existing land tenure, lack of awareness about the existing land acts and
their provisions, and the difficulty of getting exclusive property rights in
situations involving complex land-use arrangements. Besides, the act did
not provide for registering any other than cultivated land (Alden Wily 2011a;
ElHadary 2010). Also, it may be argued that both colonial and postcolonial
policymakers were not initially serious in registering tribal land because it

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was of no use at that time, or they did that, intentionally aiming to reserve
it for future use.
The situation in Ghana is rather different. It is traditional laws and
norms, rather than the national constitution, which guide the ownership
and use of customary land (Larbi 2006; Ubink 2008). The Constitution of
the Republic of Ghana (see, for example, articles 267 and 270), and the Office
of the Administrator of Stool Lands Act 1994 (Act 481) recognize the tradi-

africa today 59(2)

tional roles and authority of chiefs, elders, and priests (traditional authority).
Indeed, although merely trustees, the Constitution allocates a huge propor-
tion (at least 25 percent) of revenue accruing from the use of customary land
to traditional authority. Also, unlike the situation in North Sudan, where
traditional authorities seem dependent on the state for payment (Alden Wily
2011a), traditional authority is independent, at least in terms of being on the
payroll of the government. Indeed, the Constitution clarifies that “A chief

63
shall not take part in active party politics; and any chief wishing to do so
and seeking election to Parliament shall abdicate his stool or skin” (article

Yasin Abdall a Eltayeb ElHadary and Fr anklin Obeng- Odoom

276), indicating that there is a clear intention to avoid political interference
in matters of tradition.
The most important difference between North Sudan and Ghana is
that the government based in Khartoum does not recognize customary inter-
est in land as having the legal force of property, whereas the government of
Ghana, based in Accra, does give recognition to customary interest. The
implication is that customary owners in Ghana have more legal protection,
regardless of whether they have registered their interest formally, than
indigenous owners in Sudan, whose interests, especially when unregistered,
are not recognized by the state and fall, by default, to the state (Alden Wily
2011a, 2011b).
As with customary land in North Sudan, tenure over customary land in
Ghana is not usually documented; however, since 1843, the state has taken
the position that some writing or documentation is crucial to ensure clarity
in land management. In 1895, the state passed the Land Registry Ordinance
and, in 1962, repealed and replaced it with the Land Registry Act, which
stipulated voluntary registration of any instrument in land (Alhassan and
Manuh 2005). The late 1980s and 1990s witnessed three further changes.
One, the state passed the Land Title Registration Law in 1986 to replace deed
registration.3 Two, the first land policy was introduced in Ghana in 1999;
christened the National Land Policy (Ministry of Lands and Forestry 1999),
its aim is to ensure “the judicious use of the nation’s land and all its natural
resources by all sections of the Ghanaian society in support of various socio-
economic activities undertaken in accordance with sustainable resource
management principles and in maintaining viable ecosystems” (Ministry
of Lands and Forestry4 1999:6) and, three, to operationalize the land policy,
the government launched the Land Administration Project (LAP) in 2003.
The project has four main components5 in its first phase (2003–2010).6 First,
there were institutional reforms, under which all the land-sector agencies,7
the Survey Department, the Land Valuation Board, the Lands Commission,

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 and the Land Title Registry, would work under one umbrella body, called
the new Lands Commission. Under this body, there is the Customary Land
Administration Unit, which works to establish customary land secretariats
as either centralized land secretariats or village and town secretariats under
the control of local chiefs, tindaana (earth priests), or family heads. The
second component of LAP (2011–2015) entailed the attempt to harmonize
land policies. Under a third, an ongoing monitoring and evaluation system
africa today 59(2)

was established; and in a fourth component, the reforms tried to remove

government from the management of stool lands, and generally make the
Lands Commission market-focused (Karikari 2006; Land Administration
Programme Unit 2009). The expressed overall aim of LAP is to provide secure
land tenure, which is believed to be a sine qua non for growth, economic
development, and poverty reduction (Kudom-Agyemang, 2009).
The nature of land tenure in North Sudan and Ghana and the recent
64

transformations are informed by the notion that unless a bundle of rights can
be privately owned by individuals, owners of land would have little incentive
Conventions, Changes, and Contr adic tions in L and Governance in Africa

to put it to the highest and best use or little interest in ensuring that it is used
sustainably. From this perspective, people are driven mainly by self-interest
which, in turn, spurs them on to be productive. According to this view, cus-
tomary property rights are inefficient because, not having any private or indi-
vidual interest in a resource, people are likely to become irresponsible and
act in ways that will injure the common good, or what economists, following
Garrett Hardin (1968), commonly refer to as the “tragedy of the commons.”
This way of seeing became popular shortly after Hardin’s paper appeared
in print (Ostrom 1990). For instance, Armen Alchian and Harold Demsetz
argued that “persons who own customary rights will tend to exercise these
rights in ways that ignore the full consequences of their actions” (1973:19).
The notion of the tragedy of the commons remains popular and is perhaps
most evident in the work of Hernando De Soto (2000, 2004), the Peruvian
economist, and Klaus Deininger (2003), the World Bank’s leading economist
on land issues, who argue that it is more efficient to commodify and create
markets in traditional land. Within this framework, titling should promote
secure tenure and access to credit (see also Enemark 2004). It is important to
ascertain the validity of these claims in North Sudan and Ghana.

Has Formalization Led to Secure Land Tenure?

The concept of secure tenure is multidimensional and assumes different

meanings in different disciplines; however, when it is used in the debate
about titling, it connotes protecting the rights of landowners and their
descendants from becoming landless and curbing the incidence of land
encroachment and multiple land sales (Obeng-Odoom 2012a).
From this perspective, it is hard to accept that formalization has led to
secure tenure in the case of the study areas. In North Sudan, the land ques-
tion is considered as a crucial factor behind escalating violence and armed

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conflict in many parts of the country. Several published works have pointed
out that access to land was the biggest issue of contention in recent conflicts
in the country (Ahmed 2009; ElHadary 2010; Komey 2009, 2010; Manger
2009; Pantuliano 2007). The conflict in places such as Darfur ought to be
understood as deriving from discordant sociopolitical relationships between
the state and its people in the context of the accumulation of capital. The
way in which resource conflicts have evolved in the country seems to require

africa today 59(2)

a focus on the state and on the concept of “good governance.” However, a
more nuanced way of seeing is to posit that there is a need to look at people’s
use of, and control over, resources at many different levels, thus permitting
a consideration of processes of power and authority (Manger 2009). The
inequality of land distribution and legal recognition of customary land rights
only in the central and northern parts has led to socioeconomic variation
and feeling of marginalization in the regions where the land-tenure system

65
is fragile and insecure, contributing to the violence and armed conflict in
places such as Darfur in the western part and Abyie in the southern. This

Yasin Abdall a Eltayeb ElHadary and Fr anklin Obeng- Odoom

chain of reasoning led ElHadary (2010) to conclude that most areas gov-
erned by customary rights have undergone severe conflict in North Sudan.
This dynamic is because land is everything for people, including a source
of livelihood, dignity, wealth, and social peace, so when it is lost, the loss
means losing all things and having nothing left to lose if the dispossessed
are involved in protracted fighting. Therefore, all the peace agreements
that have currently taken place in Sudan (see Uma, 2011 for a discussion
of Comprehensive Peace Agreement 2005, the Darfur Peace Agreement
2006; and East Peace Agreement 2006) have tried to focus on the issue of
land tenure. For example, the Comprehensive Peace Agreement (CPA) calls
for the incorporation of customary laws and the establishment of four land
commissions, to arbitrate claims, offer compensation, and recommend
land-reform policies, yet more needs to be done. The CPA of 2005 addressed
several issues, such as power and wealth sharing, and left the core issue of
land ownership to be resolved later. In this light, Shanmugaratnam (2008) has
argued that the National Congress Party and the Sudanese People Liberation
Movement (SPLM) addressed several core issues in the CPA 2005, such as
the right to self-determination of the peoples of south Sudan, power sharing,
and oil- and nonoil-wealth sharing, democracy, and permanent ceasefire and
security management, but left the vexed land question to be resolved at a
later stage by the two parties. It raises the question of whether the parties
want to benefit from the current situation and take land whenever there is a
need (oil extraction, mechanized or irrigated schemes), despite the existence
of CPA. According to Komey (2009), despite the provision of some mecha-
nisms for settling land-related issues in the postconflict era by the CPA, the
current difficulties facing the implementation of the agreement have raised
considerable fear among the local Nuba peoples as to how secure their land
is. It is unclear how this complex ensemble of political economy processes
can be resolved by the simplistic narratives of “titling and registration for
security of tenure.”

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 Similar uncertainties exist in Ghana, where, despite ongoing registra-
tion of title, land is the source of conflict and litigation. As of 2003, 15,000
land cases were pending before the courts in Accra (World Bank 2003), 9214
cases pending before the courts in Kumasi (Crook 2004), 74 land cases pend-
ing before the courts in Bolgatanga, Tamale, and Wa (Abdulai 2010), and 40
cases in Cape Coast (Cashiers’ Office 2010). Overall, there were an estimated
60,000 land cases in Ghana in 2003 (Kasanga 2003), as against 11,556 land
africa today 59(2)

cases in 1999 and 14,964 cases in 2002 (Kotey 2004). This evidence implies
that, between 1999 and 2003, there was a 4198 percent increase in the
number of land cases in Ghana. More recent evidence suggests that the spate
of land conflicts has increased. In Cape Coast, for example, the number of
cases pending in the high court as of 2008 was 114 (Cashiers’ Office 2010),
an increase of more than 100 percent over 2003 levels. These figures exclude
more than 770 land disputes that arose between 2003 and 2010, which were
66

resolved through alternative dispute resolution (LAP 2010).

Between 1961 and 2004, 31 percent of the reliefs sought in land cases
Conventions, Changes, and Contr adic tions in L and Governance in Africa

were declaration of title, 19 percent damages, and 22 percent related to recov-

ery of possession. Disaggregated further, there was a rise greater than 500
percent in the declaration of title relief sought before the 1980s (1971–1980),
when registration was voluntary, and the post-1980s, when registration
became compulsory (author’s calculations based on figures made available
by Kotey 2004:98). Not all parcels of land which are the subject of litigation
are registered, so the continuing litigation should not be read only as a failure
of registered land to provide security. Unregistered land has its own prob-
lems too, including the multiple sale of land by tribal chiefs (Ubink 2008).
Although it is too early to reach firm conclusions, it may be argued that the
recent discovery of oil in commercial quantities in the Western Region of
Ghana might fuel more land conflicts, particularly because the basic mecha-
nisms that sustain such conflicts—inter alia, inadequate compensation of
losses as a result of oil drilling—are not in place (Obeng-Odoom 2012b).
Either way, insecure land tenure sometimes leads to loss of life, as happened
between 1994 and 1995, when land-related conflicts in the northern parts
of the country caused the death of one thousand people (Aryee et al. 2011).

Has Titling Led to Easier Access to Credit?

The titling-for-credit-and-poverty-reduction claim can be explained in three

ways. First, possessing formal property rights enhances the opportunity to
obtain credit, which, in turn, contributes to a reduction in poverty levels via
a spending effect. That is, credit better enables individuals to carry out prof-
itable business enterprises through which they can increase their income.
Second, formal property rights contribute to increased real property values
through a reduction in transaction costs and an increase in the safety of the
property; exchanging such high-value real property increases the monetary
gain of a property owner, whose income level can thereby be improved.

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Third, the enhanced attributes of real property (via reasons 1 and 2) encour-
age the poor to invest further in their property to increase its value—which,
in turn, sets in motion a virtuous cycle of high property values (Deininger
2003; Kim 2011; Mooya and Cloete 2007). According to Abdulai (2010) and
Domeher and Abdulai (2012), in practice, the links among formal property
rights, real property values, credit, and poverty are indirect: because of
lengthy processes of foreclosure and legal barriers, lenders tend to base their

africa today 59(2)

decisions of extending credit facilities on analysis of credit history and cash
flow, rather than just ascertaining whether interests in land are registered.
That is, possessing a title certificate is necessary but not sufficient to obtain
credit for most banks in Ghana.
However, in North Sudan there is a direct correlation between access-
ing loan and securing land rights, especially when it comes to providing
collateral. Without having official land-ownership documents approved by

67
the state, having access to credit, mainly from formal sources (banks), is
rare. People who have customary rights to land have failed to prove owner-

Yasin Abdall a Eltayeb ElHadary and Fr anklin Obeng- Odoom

ship of land: their land is regarded as government land, and therefore tends
to be rejected when offered as collateral security. The failure to fulfill the
requirement demanded by banks, especially when it comes to providing
collateral, has deprived large groups of pastoralists from accessing fund-
ing. In this regard, El Amin (2008) discovered that throughout the 1990s,
the irrigated subsector received an average of 50 percent of all Agricultural
Bank of Sudan credit allocations, the mechanized subsector more than 25
percent, and the peasant-farming subsector only an average of 14 percent.
Interestingly, it appears that big farmers in the so-called mechanized and
the irrigated sector who can access credit from banks are defaulting on their
loans. ElHadary (2010) has found that more than half of them do not repay
the credit, and now they are considered bankrupt. That trend notwithstand-
ing, the credibility of titleholders is intact, while peasants, whose rights to
land are often unregistered but have no history of default, have difficulties
accessing loans. In the absence of formal credit, poor peasant farmers resort
to informal credit, called shail, with an interest rate that varies between 150
percent and 200 percent under the compulsion to meet some production pre-
requisites and consumption needs; therefore, lack of access to credit for rural
producers remains one of the driving forces behind the declining of farming
activities, and thus widespread poverty among farmers (El Amin 2008). Lack
of access to credit, coupled with the adoption of structural-adjustment pro-
grams where the state has withdrawn a substantial amount of agricultural
subsidies and introduced market liberalization, has led to an increase in the
cost of production and a decline in the return on agricultural production.
This experience may be one of the reasons why most rural people give up
farming and flee into urban areas in search of better economic opportunities
(ElHadary 2011).
Is the Sudanese experience borne out in Ghana? In Ghana, the view
that registration of land rights is necessary to obtain credit is contested by
land researchers such as Abdulai (2006, 2010) whose analysis is consistent

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 with global studies by Bromley (2008) and Devas (2006). Banks require
more than title certificates to offer loans. According to these scholars, the
most important requirement for many banks in offering a loan facility is
stable employment, which would enable the creditor to honor the inter-
est payments on the loans until the loan is fully amortized. This practice
may be a reflection of the general view that registration of title is not a big
determinant of housing and land prices. One survey of 498 people, made up
africa today 59(2)

of builders and officials from real-estate companies, revealed that location

and access to utilities are the most important drivers of real-estate prices,
while possessing a formal title documents is one of the least determinants
of property prices (Kwame and Antwi 2004:44–45). A possible explanation
of the Ghana situation is that unregistered, customary interest in land has
legal recognition.
A juxtaposition of the experiences in Ghana and North Sudan suggests
68

that it is not registration per se that gives access to credit and secure tenure;
rather, it is whether customary rights in land have legal recognition. Hence,
Conventions, Changes, and Contr adic tions in L and Governance in Africa

the assumption underlying most neoliberal campaigns for titling is shaky,

but that this assumption weakens in the case of neoclassicists should not
be interpreted as success in a customary system, as some anthropological
reasonings (e.g. Katz 2001) would have us believe. In both North Sudan and
Ghana, the customary system has several limitations, including gender bias
(Amanor 2010; Duncan and Brants 2004). In this regard, the most important
disadvantage of customary land-tenure system is the embodiment of judicial
and executive authority in a single individual (sultan, a village headman,
chief, or priest), giving such a class too much power in the allocation of
land (Babiker 2008). Failure in the case of neoclassicists must, however,
be interpreted as success for the few people who have benefitted from the
transformation of the land-tenure system.

When Failure Means Success:

Dimensions and Effects of Land Grabbing

Land grabbing is usually conceptualized as the expropriation of large tracts

of land by corporate interests (especially transnational corporations), often
for the purpose of establishing agribusinesses in food production, tilling land
for agro fuels, or high-class tourism development (Land Research Action
Network 2011:5–6; Zoomers 2011:12–13). What determines whether there is
a land grab is not the purpose to which the grabbed land is put, important as
that is; rather, it is whether there is the alienation or expropriation of land,
usually from people in weaker socioeconomic classes. Land may be grabbed
by governments too, as in taking land from people in the name of national
interest and refusing to pay fair compensation promptly.
Land grabbing in North Sudan is not a twenty-first-century phenom-
enon: it goes back to the nineteenth century, it is still going on today, and
there are signs that it will continue in the future (Babiker 2011). During the

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colonial era, several land acts were introduced in North Sudan, the overall
objective of which was to give the state full power to grab land and relocate
it to investors and loyalists. The eastern part was the first region that wit-
nessed land grabbing during the colonial era. In the early 1990s, the establish-
ment of Gash and Tokar schemes, in land which belonged customarily to
the Beja people, deprived local people from accessing their land rights. The
second victims were the people of the central part, who lost about 850,000

africa today 59(2)

hectares of land as a result of state-led land grabbing for cotton cultivation in
the Gezira, the biggest irrigated scheme in Africa. Besides irrigated schemes,
customary land has been grabbed for mechanized farming. Mechanized farm-
ing in Gedarif State, eastern region, started in the year 1940, for growing
sorghum (dura), largely to meet the food needs of the British army (Eltayeb
1983). It began on a small scale (21,000 feddan), but dramatically increased
to eight million feddan in the year 2008. Between 2004 and 2008, total land

69
grabs in North Sudan amounted to 4.0 million hectares of land on leases
whose average term is fifty years. The government of North Sudan is actively

Yasin Abdall a Eltayeb ElHadary and Fr anklin Obeng- Odoom

involved in expropriating land from customary holders and giving it to inves-
tors, both foreign and local (Deininger et al. 2011). Private landowners may
be expropriated too, but they are usually compensated, whereas compensa-
tion is not usually paid to customary landowners (Alden Wily 2011a, 2011b).
In fairness to the state, the government usually pays compensation for loss
in grazing area and crops lost. In such a scenario, the amount of compensa-
tion can be the subject of a court appeal, but not the decision to acquire the
land compulsorily. Indeed, during the pendency of the case looking at the
adequacy of the compensation for lost grazing area and lost crops, the state
evicts the expropriated persons (Alden Wily 2011a, 2011b; Deininger et al.
2011).This experience is widespread, so the rapid grabbing of customary land
right in Gedarif State has negative implications on the livelihood security of
people and is considered as one of the essential factors behind the grievances,
resource conflicts, and spread of poverty among rural communities in North
Sudan (Babiker 2011; ElHadary 2010).
The experiences of North Sudan show that successive national govern-
ments inherited the colonial legacy and adopted the same policy but, in some
cases, have introduced land acts that are even more expropriative. Since
independence, land-tenure systems in both countries have been frequently
amended to suit the current requirements and facilitate land grabbing. For
example, the unregistered land act of 1970 in Sudan enabled the government
to implement a development policy based on the expansion of the agricul-
tural sector, especially mechanized farming, and by 2005 the total area under
mechanized farming had increased fifteenfold (Ayoub 2006). The Act granted
the government the power to dispose of land as it saw fit. Abolition of the
native administration system in 1971 was the last decision taken by the
government to ensure the suppression of communities or individuals that
might resist the process of land grabbing and to disable their efforts (Komey
2009). The grabbing of land for public and private use under the pretext of
“new development” and “public interest” has undermined the rights of

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 customary land owners and led many people to join rebel groups (Pantuliano
2007). To date, a large group of rural people believe that the customary land-
tenure system serves them well; however, the actors in the state insist that
that system is no longer valid, describing it as “history” (ElHadary 2010).
Based on that, large productive areas have been taken from pastoral com-
munities and settled communities and given to investors, merchants, and
close affiliates of the government, with no compensation or commitment
africa today 59(2)

to the traditional right.

In North Sudan, the situation is particularly pervasive in Kordofan
and Gedarif states. In South Kordofan, 50 percent of the leaseholders in the
Habila mechanized rain-fed farming project were merchants, and only 11 per-
cent had previously been farmers (Komey 2010); the intervention was mainly
exploited by the private sector, based on concessions given by the govern-
ment to secure food for the urban population and cash crops for export.
70

Gedarif, in the eastern region and the early home of mechanized farming has
had a similar experience. There, 64 percent of mechanized schemes hold-
Conventions, Changes, and Contr adic tions in L and Governance in Africa

ers are considered as outsiders. A huge share of the beneficiaries are traders
(31%) or retired government officials, including civil servants and army
and police officers (48%) with no connection to farmers (Ijaimi 2006). This
situation led Assal (2005, cited in Miller 2005) to describe such merchants,
the winners of agricultural development, as “Mafia.” A number of people in
this class have joined the current regime to maintain their class position and
privileges and to get protection to their land “right” (Miller 2005).
Government land grabs are evidently the case in Ghana. Between 1850
and 2004, the state executed 1,336 instruments to acquire land compulsorily.
It did so in all ten regions of Ghana. The regions with the largest shares of
compulsorily acquired lands are Greater Accra (34.1%), Western (26.7%),
Ashanti (13.3%), and Brong Ahafo (10.1%) (Larbi, Antwi, and Olomolaiye
2004:121–122). Section 20 (1 and 2) of the Constitution9 of Ghana provides
four conditions under which private land can be compulsorily acquired.
First, the acquisition must be in the public interest, defined as satisfying
“the interest of defence, public safety, public order, public morality, public
health, town and country planning or the development or utilization of
property in such a manner as to promote the public benefit.” Second, the
specific purpose for the acquisition must be stated: it is insufficient to
declare that an acquisition is in the “public interest” without specifying
what that interest is. Third, the compulsory acquisition can take place only
if it is done according to a law that provides for “the prompt payment of fair
and adequate compensation.” Fourth, the expropriated person shall have the
liberty to question the acquisition in a high court in Ghana.
It is important to review the evidence on whether the Ghanaian state
has met these conditions. State land is mostly underutilized. For example,
50 percent of state lands are idle (Larbi 2008). Most state lands that have
been put to use are alleged to have been sold to state officials. According
to the Committee for Joint Action (2010), the immediate past government
(2001–2008) shared state land in prime locations in Accra to 103 of its

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sympathizers. Thirty-six plots were shared among some party members and
individuals, who were believed to be closely affiliated to the government.
In addition to giving land to cronies, governments sometimes grant state
land to people who voted for their favorite politicians (Onoma 2008), while
dispossessing people who voted against their preferred politicians (Yeboah
and Obeng-Odoom 2010). Thus, some agents of the state (in the government)
use state land in ways that are contrary to the provisions of the constitution.

africa today 59(2)

It is estimated that the state owes a substantial amount in compen-
sation payment, which varies among the regions of Ghana. In the Central
Region, for example, the state has paid compensation for only 20.4 percent
of the 692 parcels of land it has purportedly acquired. It is estimated that
about $66 million is required to settle compensation claims in the region
(Larbi 2008). In the few cases in which compensation is paid, it goes to the
wrong people. Article 20 (2a) of the Constitution of Ghana states that fair

71
and adequate compensation must be paid promptly to persons from whom
the state has compulsorily acquired land; however, in practice, the state has

Yasin Abdall a Eltayeb ElHadary and Fr anklin Obeng- Odoom

tended to pay compensation to chiefs and traditional authorities, who are
only trustees, rather than the common people, who make a living from till-
ing the land (Brobby 1991) and to whom10 the constitution makes reference
(Article 21 [6]).
What about the fairness and adequacy of the compensation the state
pays? One way to access the adequacy of compensation is to look at the
method of assessment (Boydell and Baya 2011). In valuation parlance, the
usual basis of compensation is the “deprival value” concept—that is, the
amount that it would cost to restore an expropriated person to the condition
in which he was before the compulsory acquisition (Johnson, Davies, and
Shapiro 2000). Estimating compensation on this basis requires accounting
for lost crops and incidental costs, such as the cost of relocation; however,
the Land Valuation Division, the branch under the New Lands Commis-
sion responsible for valuation for the assessment of (state) compensation,
adopts a severely limited concept of compensation. It typically uses the
crop-enumeration method to assess compensation for farmers from whom
land is taken by the state. The method entails counting how many crops
are destroyed (enumeration), multiplied by the value of the crops assessed
by the Ministry of Agriculture. The method fails to compensate for any
other inconvenience as stipulated in the State Lands Act, Act 125. Where
the Land Valuation Division considers the land’s value, it makes reference
to only the market value and ignores the cost of disturbance in its assess-
ment (Larbi 2008; Obeng-Odoom 2012b). Even for items for which the state
valuer estimates compensation, there are instances when the rates adopted
for crops, for example, are dated. That was the case in Sono v. Kwadwo,11
when Ampiah J (as he then was) held that “If fair value was to be given to the
injured plaintiff then it was only reasonable that a realistic assessment was
made of the properties damaged since compensation based on rates which
had outlived their usefulness and had no semblance to realities would be
unfair and unreasonable” ([1982–83] GLR 398, bullet point 2).

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 In some cases, land grabbing in Ghana takes the form of big corpora-
tions taking the land of peasant farmers. The problem is particularly preva-
lent in the Western Region, where there is huge mining sector. For instance,
in Tarkwa, one of the urban centers in the region, 70 percent of the land
is devoted to mining activities; however, between 1998 and 2006, there
were fourteen major cases related to land, including displacement without
settlement and settlement without compensating for other losses (Tsuma
africa today 59(2)

2010:25–26). Also, seventeen companies, fifteen of which are foreign-owned,

had acquired a total of 1,075,000 hectares of land as of August 2009 for the
cultivation of jatropha, mostly in the Brong Ahafo and Ashanti regions (Scho-
nevald, German, and Nutakor 2010). Furthermore, Greenleaf Global (2011)
has acquired a further 10,000 hectares of land for the cultivation of maize in
the Volta Region, 70 percent of which will be exported.
Most land acquisitions are justified on grounds of investment and
72

development, but they typically lead to a displacement of local farmers

and rural dwellers, who receive no compensation or restitution and are left
Conventions, Changes, and Contr adic tions in L and Governance in Africa

expecting that the returns of this foreign investment will trickle down to
them. Also, the grabs lead to a deterioration of soil quality because farmers
no longer have sufficient land to practice the fallow system, which usually
leads to a natural replenishing of lost nutrients in the soil. A loss in soil qual-
ity, in turn, leads to a reduction in yield and quality of nutritious food. In the
long run, it is likely that there will be pressure to till hitherto uncultivated
land and forest reserves in Ghana (Schonevald, German, and Nutakor 2010).
Most land grabs for the production of biofuels are facilitated by traditional
authorities working hand in hand with the Ghana Investment Promotion
Centre, which tends to lease land for a period of twenty-five to fifty years
(Alden Wily 2011b). While the rhetoric of fostering development through
investment in land for the “public interest” is used to justify land grabbing
in Ghana, it is some agents of the state and some traditional authorities
that end up benefitting from the process in the form of amassing wealth and
power (Onoma 2008).

Conclusion

The experiences of North Sudan and Ghana have shown that land-tenure
systems in Africa are characterized by overlapping and contradictory forms
of regulation. Significant differences exist between the experiences of these
countries, especially in terms of the legal recognition of customary inter-
est in land. While the state recognizes customary land rights in Ghana and
accords traditional authorities legal recognition, the state in North Sudan
does not. While titling seems to improve the chances of obtaining access to
credit in Sudan, there is no overwhelming evidence to show that titleholders
in Ghana have better access to credit. So it might be argued that whether
titling leads to credit access depends on the status of nontitled interest, thus
challenging the one-size-fits-all neoclassical economics assumption that

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titling generally leads to loan access. Similarities may be found in the nature
of recent transformations that seek to formalize and privatize customary
land. Also, in both cases, customary landowners experience dispossession—
by the state, traditional authorities, and TNCs, which, although different in
form, are united in the pursuit of their class interest.
The evidence presented in this paper suggests that land grabbing is not
merely a function of “weak laws,” or even their implementation, nor is it a

africa today 59(2)

function of whether customary interest in land has legal recognition, impor-
tant as these dynamics are. Rather, the common driver of land grabbing in
the case-study areas is the extension of class interest by elite groups in the
state, or TNCs (that work with state and traditional authorities), and tradi-
tional authority that are taking advantage of the growing commodification
and individuation of land through compulsory acquisition, title registration,
and foreign investment in land.

73
This finding has wide-ranging implications for the scholarship on land
grabbing in Africa. Neither accounts of land grabbing that focus entirely on

Yasin Abdall a Eltayeb ElHadary and Fr anklin Obeng- Odoom

how TNCs’ commercial interests and how they drive land grabbing in Africa,
nor narratives that blame the state for not creating the conditions neces-
sary for investment in land to pave the way for development, are complete.
Rather, the state, sometimes in cahoots with traditional authorities, has
put in place multiple measures to make it possible for itself and TNCs to
expropriate land from the ordinary customary owners. The process of land
grabbing is organically linked to forces of globalization and capital accumu-
lation, mediated by the actions and inactions of the state and traditional
authority. From this perspective, the narrative about Ghana doing better
than North Sudan in terms of good governance, or North Sudan doing worse
on good governance indices because it is a failed state, pales, and the liberal
prescription of extending and strengthening laws as a panacea for secure land
tenure begins to look shaky.

ACKNOWLEDGMENTS

We are grateful to the five referees of Africa Today for helpful feedback on an earlier draft of the
paper, which has helped to improve the quality of the text. The usual disclaimer applies.

NOTES

1. Also radically different is the experience in South Sudan, which gained independence from
North Sudan on 9 July 2011. There, the government recognizes that customary rights in land
amount to property interest, regardless of whether they are registered, whereas the govern-
ment in North Sudan does not recognize customary rights in land; for details, see Alden Wily
2011a, 2011b.

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 2. That experience contrasts with the early recognition of land in the northern and central
regions of Sudan. Therefore, the land acts created regional disparity in the country, explaining
why people in regions such as Darfur, the eastern and southern part of “Old Sudan” (that is,
Sudan before the division) felt strongly that they were historically marginalized from economic
development (ElHadary 2010; Komey 2009).
3. Title registration is different from deed registration. Title registration requires compulsory
africa today 59(2)

registration and serves as a framework for the registration of interests in land, rather than
instruments. Furthermore, unlike deed registration, it is believed to provide the basis for a more
secure backing by the state, what is called the indefeasibility principle.
4. The name has been recently changed to Ministry of Lands and Natural Resources.
5. These components are for phase 1 of the project; it is expected that in the long term, there
may be other phases of the project (Kotey 2004).
6. These reforms were initially to be undertaken from 2003 to 2008, but had to be extended to
2010 (Kudom-Agyemang 2009). The second phase of LAP began in 2011 and is expected to
74

end in 2015.
7. Except the Town and Country Planning Department and the Office of the Administrator of
Conventions, Changes, and Contr adic tions in L and Governance in Africa

Stool Lands.
8. Ghanaian and Nigerian readers may be inclined to see a connection between section 419
of the Criminal Code of Nigeria and this figure. No such connection exists between the
percentage increase and the criminal code.
9. Article 20 of the current constitution of Ghana has no retrospective effect (see also Nii Kpope
Tsuru v. Attorney General and Nii Amotia v. Ghana Telecom). Earlier constitutions did not neces-
sarily regard compensation as prerequisite for compulsory acquisition, but the point under
discussion is whether land policies have ensured the prompt payment of fair and adequate
compensation.
10. Article 21 (6) suggests that it is “the owner” who should receive compensation, not “the
trustee.”
11. In the High Court of Sunyani, Western Region Ghana. Judgment delivered on 5 March 1980.
The state valuer was the Lands Department.

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